Routier v. Ross ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RAMSES ROUTIER,
Plaintiff,
v. Civil Action No. 17-2833 (JEB)
WILBUR L. ROSS, JR., Secretary, United
States Department of Commerce,
Defendant.
MEMORANDUM OPINION
Plaintiff Ramses Routier worked as a GS-13 Electronics Engineer in the National
Telecommunications and Information Administration (NTIA) within the Department of
Commerce. A 62-year-old man of Haitian descent with 27 years of federal-service experience,
Routier’s government career ended when he was removed from his position in fall 2016 by his
supervisors, Binyam Tadesse and Dr. Darlene Drazenovich, for poor workplace performance.
Believing his supervisors had discriminated and retaliated against him — and had subjected him
to a hostile work environment — Plaintiff brought suit here. The Government has now moved to
dismiss one count and narrow another, arguing that Routier has insufficiently alleged adverse
action and a hostile work environment. The Court agrees with Defendant’s contentions and will
grant the Motion.
I. Background
The Court, as it must at this stage, sets forth the facts as pleaded in the Complaint.
Routier, a 62-year-old immigrant from Haiti with two graduate degrees in electronics
engineering, worked as a GS-13 Electronics Engineer in the Systems Review Branch of the
1
Spectrum Services Division of the Office of Spectrum Management (OSM) at the NTIA, which
is housed within the Department of Commerce. See ECF No. 15 (Am. Compl.), ¶¶ 1, 6–10. His
responsibilities included performing preliminary assessments of major federal radio-
communications systems, developing procedures for efficient spectrum utilization, giving advice
and guidance on how to resolve technical and policy problems, and providing electronics-
engineering expertise to the Spectrum Services Division. Id., ¶¶ 13–15. In his position, Routier
reported to two others: Binyam Tadesse, his first-level supervisor, and Dr. Darlene Drazenovich,
his second-level supervisor. Id., ¶¶ 11–12. During the time relevant to this case, Routier worked
with Hien Q. Ly, a 40-year-old Vietnamese-American electronics engineer who had similar
duties. Id., ¶¶ 22–23.
Plaintiff alleges that his problems with his supervisors began as early as 2012. At that
time, he visited with Drazenovich to inquire about his chances for obtaining a promotion to the
GS-14 level. After hearing his question, Drazenovich slammed the door in Plaintiff’s face. Id.,
¶¶ 16–17. On a separate occasion, Tadesse derisively asked Routier whether he, a born-again
Christian, engaged in the practice of voodoo. Id., ¶ 16-2. According to Plaintiff, “Voodoo is a
syncretic religion practiced chiefly in Haiti and the Haitian diaspora,” where Tadesse knew that
Routier had been born and raised. Id., ¶¶ 17-2–18. At other times, Drazenovich and Tadesse
referred to Plaintiff and other employees as “old” and indicated that they needed “fresh blood” in
the office. Id., ¶ 19.
In July 2013, Tadesse told Plaintiff he was frustrated with reviewing his work because of
the amount of time it took. Id., ¶ 24. Later that year, Tadesse met with Routier to discuss his
yearly performance and ended up telling Plaintiff that he was not ready to be promoted to the
GS-14 level because his work was inadequate. Id., ¶ 26. On July 23, 2014, Tadesse met with
2
Routier to advise him that he was “tired of seeing [Routier] making errors in his preliminary
assessment[s].” Id., ¶ 31. Following that meeting, Tadesse issued him a “Performance
Counseling” memorandum that gave notice to Routier that his performance was “of concern.”
Id., ¶ 34. The memorandum noted the importance of Plaintiff’s work being accurate and
thorough, and it pointed to specific examples of Plaintiff’s frequent mistakes and their
consequences to the whole branch. Id., ¶¶ 37–38. Along with the memorandum, Tadesse
promised Routier that he would meet with him weekly to provide guidance on his work, as well
as allow him additional time to study relevant manuals and conduct extra training. Id., ¶ 40.
Routier received his FY 2014 performance evaluation on October 4, 2014, less than two
months after receiving this memorandum. Plaintiff was assigned an overall rating of 2 out of 5,
marking his performance as “marginal.” Id., ¶ 42. The evaluation explained Routier’s
performance deficiencies in a similar fashion to the memorandum. Id., ¶ 44. Around the same
time, Routier’s colleague Ly was given a performance rating of “5” for FY 2014, despite making
some of the same errors. Id., ¶¶ 28, 45–46, 59. Routier first initiated contact with an EEO
counselor about his concerns on November 12, 2014. Id., ¶ 47. He followed up by filing a
formal complaint of discrimination on November 25, 2014. Id., ¶ 49.
On April 25, 2015, Routier met with Tadesse for his mid-year review. During this
meeting, Tadesse explained to Plaintiff that his performance was still inadequate and
unacceptable, and, as such, Tadesse was considering placing him on a performance-improvement
plan (PIP). Id., ¶¶ 53, 58, 60–62, 64–65-2, 69. In summer 2015, Tadesse “made it impossible”
for Plaintiff to meet a deadline and also requested that Routier inform him when he was away
from his desk for more than 30 minutes. Id., ¶¶ 55–56.
3
In September 2015, Tadesse followed through and placed Routier on a PIP. Id., ¶ 57.
The PIP specifically identified the errors Plaintiff had made and gave him detailed, concrete
tasks that he would need to complete within 90 days. Despite this directive, Plaintiff’s
performance did not improve, and he failed to complete the PIP’s specified criteria. Id., ¶¶ 58–
71. In early August, Tadesse issued a Notice of Proposed Removal for Plaintiff and sent it to the
deciding official, Drazenovich. Id., ¶ 81. The sending of this notice led to a series of
communications between Plaintiff and Drazenovich before she ultimately issued a decision on
September 27, 2016, to remove Routier from federal service effective immediately. Id., ¶¶ 82–
86.
Achieving no success administratively, he then brought this action, which asserts three
counts. Count I alleges discrimination and retaliation under both Title VII and the Age
Discrimination in Employment Act. Count II alleges a hostile work environment under both
statutes. Finally, Count III challenges a decision by the Merit Systems Protection Board
upholding Routier’s removal under civil-service rules. Id., ¶¶ 110, 111–176. Defendant now
moves to dismiss the majority of Count I and all of Count II under Federal Rule of Civil
Procedure 12(b)(6).
II. Legal Standard
Rule 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a
claim upon which relief can be granted.” In evaluating Defendant’s Motion to Dismiss, the
Court must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the
benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d
4
605, 608 (D.C. Cir. 1979)) (citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402
F.3d 1249, 1250 (D.C. Cir. 2005).
Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plaintiff must put forth “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. The Court need not accept as true “a legal conclusion couched as a factual
allegation,” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v.
Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986) (internal quotation marks omitted)). For a plaintiff to survive a 12(b)(6) motion,
the facts alleged in the complaint “must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555–56 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
III. Analysis
In considering Defendant’s Motion to Dismiss, the Court first discusses Plaintiff’s
discrimination and retaliation claims in Count I, and next addresses whether Routier has
sufficiently alleged a hostile work environment in Count II.
A. Count I
In Count I, Plaintiff alleges that the Government both discriminated against him on the
basis of age and nationality and retaliated against him for engaging in EEO protected activity.
As Defendant notes, Plaintiff does not clearly specify which actions he believes were
discriminatory and which were retaliatory. While clarity is certainly preferred, it is unnecessary
for the purposes of deciding this Motion. This is because the Court, after setting out the
5
standard, will evaluate all claims under the lower retaliation burden of proof, thus giving Routier
the benefit of the doubt.
As to discrimination, Title VII makes it “an unlawful employment practice . . . to
discharge any individual, or otherwise to discriminate against any individual . . . because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The ADEA
likewise requires that “[a]ll personnel actions affecting employees or applicants for employment
who are at least 40 years of age . . . in executive agencies . . . be made free from any
discrimination based on age.” 29 U.S.C. § 633a(a). To state a cause of action for discrimination
under either Title VII or the ADEA, Routier must show that (1) he “suffered an adverse
employment action” (2) because of his national origin or age. See Baloch v. Kempthorne, 550
F.3d 1191, 1196 (D.C. Cir. 2008).
An adverse action in the discrimination context requires “a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing significant change in benefits.” Taylor v. Small,
350 F.3d 1286, 1293 (D.C. Cir. 2003) (citation omitted). Besides being “significant,” the change
in employment status must result in “objectively tangible harm.” Douglas v. Donovan, 559 F.3d
549, 552 (D.C. Cir. 2009) (citation omitted).
The bar for an adverse action in the retaliation context is lower. It “encompass[es] a
broader sweep of actions than those in a pure discrimination claim.” Baloch, 550 F.3d at 1198
n.4. Routier must allege an adverse employment action that would have “dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Rochon v. Gonzales, 438 F.3d
1211, 1219 (D.C. Cir. 2006) (citation omitted). This condition “separate[s] significant from
trivial harms” and protects the Government from claims of “petty slights, minor annoyances, and
6
simple lack of good manners.” Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S 53,
67–68 (2006).
In moving to narrow Count I, Defendant argues that Routier’s claims related to his
placement on a PIP and his formal removal are the only actions sufficiently adverse to proceed.
It maintains that his other claims — i.e., (1) Plaintiff’s low scores on his performance evaluations
from FY 2012 to 2014, (2) his FY 2015 mid-year review, where his supervisor found that his
performance was deficient, and (3) his supervisor’s instruction that he let him know if he was
going to be away from his desk for more than 30 minutes — do not clear the adversity bar. See
ECF No. 17 (Def. MTD) at 9–12.
The Court agrees. As to the low scores and mid-year review, the D.C. Circuit has held, in
the retaliation context, that “[i]n order for a performance evaluation to be materially adverse, it
must affect the employee’s position, grade level, salary, or promotion opportunities.” Taylor v.
Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009) (internal quotation marks and citation omitted).
Plaintiff’s Complaint, even once amended, stated no such effect. Routier attempts to work
around this fact by trying to amend his Complaint through his briefing to state that his
“artificially low performance appraisals made [him] ineligible for a step increase or cash award
money.” ECF No. 22 (Pl. Opp.) at 2. Even if such a general allegation were sufficient, a party
cannot rectify the shortcomings of a complaint through an opposition to a dispositive motion.
See ACLU v. Trump, 266 F. Supp. 3d 133, 142 n.5 (D.D.C. 2017).
Finally, Tadesse’s instruction to let him know if Plaintiff planned to be gone from his
desk for more than 30 minutes similarly does not qualify as a materially adverse action. As this
Court explained in Aldrich v. Burwell, 197 F. Supp. 3d 124 (D.D.C. 2016), putting in a full day’s
“work is a standard condition of employment”: “An employer’s ‘[m]onitoring [of] an
7
employee’s . . . time and attendance,’ therefore, ‘is a basic employment practice, and as such
could only be adverse employment action if [plaintiff] previously had immunity from general
employment policies.’” Id. at 133 (quoting Simms v. Navy Fed. Credit Union, No. 02-900, 2002
WL 32971969, at *5 (E.D. Va. 2002)). Courts have found that close monitoring can become
materially adverse if the nature of the monitoring is “so extreme and intrusive as to constitute
harassment in its own right.” Id. at 134; see also Ortez v. Washington County, 88 F.3d 804, 809
& n.3 (9th Cir. 1996) (denying employer’s motion to dismiss where it conducted “extreme
supervision” in the form of “order[ing] another employee to follow [plaintiff] and otherwise
confirm his whereabouts during the day”). Routier’s allegations do not approach that level.
Simply requesting a subordinate’s whereabouts for significant periods of time is hardly the
dictatorial supervision that might warrant materially adverse status.
The Court, accordingly, will grant the Motion and narrow Count I.
B. Count II
Defendant next targets Routier’s count for hostile work environment. Title VII’s
prohibition on discrimination is not merely “limited to economic or tangible discrimination,” but
rather “evinces a congressional intent” that employees should not be forced to “work in a
discriminatorily hostile or abusive environment.” Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 115–16 (2002) (internal quotation marks and citation omitted). “The bar for
demonstrating a hostile work environment is a high one: [A] plaintiff must show that his
employer subjected him to discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Achagzai v. Broad. Bd. of Governors, 170 F. Supp. 3d 164, 183 (D.D.C.
2016). While a plaintiff need not prove a hostile work environment at this stage, he still must
8
allege “extreme” conduct that satisfies the “demanding” standard for such a claim. Faragher v.
Boca Raton, 524 U.S. 775, 788 (1998). Here, Plaintiff’s Complaint is lacking any allegations of
behavior “so objectively offensive as to alter the conditions of [his] employment.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (internal quotation marks omitted).
The Complaint, even as amended, does not state any facts that rise to the level of
discrimination necessary for a hostile-work-environment claim to succeed. Rather than pointing
to “discriminatory intimidation, ridicule, and insult,” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (citation omitted), he lists a series of “work-related actions by supervisors,” which “courts
typically do not find . . . to be sufficient for a hostile work environment claim.” Munro v.
LaHood, 839 F. Supp. 2d 354, 366 (D.D.C. 2012) (citation omitted); see also Bell v. Gonzales,
398 F. Supp. 2d 78, 92 (D.D.C. 2005) (“Occasional instances of less favorable treatment
involving ordinary daily workplace decisions are not sufficient to establish a hostile work
environment.”). As factual support for his hostile-work-environment claim, Plaintiff specifically
alleges that his supervisor criticized his poor performance, see Am. Compl., ¶ 135, counseled
him about common errors in his work, id., ¶ 136, issued a performance-counseling memorandum
and a PIP, id. ¶¶ 137, 144, failed to give him a Gold Medal Award, and gave him poor ratings in
performance evaluations and progress reviews. Id., ¶¶ 135, 139, 141. While such criticism may
be unwelcome, it is par for the course in a typical workplace and, as such, is insufficient to
constitute a hostile work environment. See Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C.
2009) (“[T]he removal of important assignments, lowered performance evaluations, and close
scrutiny of assignments by management [cannot] be characterized as sufficiently intimidating or
offensive in an ordinary workplace context.”).
9
Outside of these minor slights and performance-based criticisms, Routier claims that his
September 27, 2016, removal contributed to the hostile work environment. See Am. Compl., ¶¶
145–46. Yet, as his removal from federal service was immediate, he can hardly be subjected to a
hostile work environment once gone.
IV. Conclusion
For these reasons, the Court will grant Defendant’s Motion and dismiss Count I except
for the claims as to Plaintiff’s placement on a PIP and his removal, and it will dismiss Count II in
full. A separate Order consistent with this Opinion will be issued this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 22, 2018
10